Volunteer Lawyers Program
Guardianship of Adults (the Basics)
Tuesday, October 30, 2018
11:30 a.m. - 1:00 p.m.
Presenters:
Hon. Margaret LaBianca
Kevin J. Parker (Snell & Wilmer L.L.P.)
Brian J. Theut (Theut, Theut & Theut, P.C.)
OVERVIEW
1.
Guardianship vs. Conservatorship
a.
Different capacity standards (Guardianship: A.R.S. § 14-5101;
Conservatorship A.R.S. § 14-5401(A)(2))
b.
Different burdens of proof (clear and convincing evidence for
guardianship: A.R.S. § 14-5304(B); Preponderance for
conservatorship: A.R.S. § 14-5401(A)(2))
2.
General or Limited (Least Restrictive Alternative)
3.
Adult vs. Minor Guardianships
4.
Probate Court System (Commissioners & Judge)
5.
Court-Appointed Counsel
6.
Court-Appointed Investigator
7.
Court-Appointed Physician
8.
Guardianship Statute, A.R.S. § 14-5301 et seq.
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OVERVIEW (CONT.)
9.
Conservatorship Statute, A.R.S. § 14-5401 et seq.
10.
Rules of Probate Procedure
11.
Who do you represent? (Petitioner vs. Ward)
12.
Annual Reports/Accountings/Budgets
13.
Confidential documents, Rule of Probate Procedure #7
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COURT APPOINTED COUNSEL
1.
How do they get appointed?
•
Once a hearing date has been scheduled, Petitioner’s counsel calls
The Office of Public Defense Services at 602-506-7228 to get the
name of a lawyer to be appointed by the court.
2.
Compensation.
3.
Things Court-appointed counsel looks for when getting assigned
a case.
4.
Standard initial letter to Petitioner’s counsel.
5.
Direct access to Petitioner for interview.
6.
Special problems when Ward does not appear to have capacity
to provide instructions/consent. (Guardian ad litem needed in
some cases).
7.
Public Fiduciary.
8.
Title 36 vs. Title 14.
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COURT COSTS
1.
Amount:
a. Filing fee: $279
b. Court investigator fee: $400
c.
Court accountant fee: $300
2.
Deferral.
3.
Waiver.
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TRAINING
1. Rule 27.1
2. Must Watch Two Training Videos:
•
•
Non-Licensed Fiduciaries
Guardianship
Website for Videos:
https://www.azcourts.gov/probate/Training/Proba
te-Training-Non-LicensedFiduciaries#Guardianship
3. Licensed Fiduciary. A.R.S. § 14-5651
4. Certificates
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CONSERVATORSHIP
1. When needed? ($10,000)
a. Guardian can handle some money.
A.R.S. § 14-5312(A)(4)(b)
2. Bond.
3. Restricted accounts.
4. Rules of Probate Procedure:
a.
b.
c.
d.
e.
Inventory. Rule 30(A).
Accountings. Rule 30(B).
Financial Order. Rule 30.1.
Sustainability. Rule 30.2.
Budget. Rule 30.3.
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GUARDIANSHIP
1. Annual Reports. Rule 30(C).
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PLEADINGS
Preparing the First Court Papers
•
•
Probate court cover sheet
Petition for Permanent Appointment of Guardian of an
Adult
• Affidavit of Person to be Appointed
• Petitioner’s Information Sheet to Court Investigator
• Order Appointing Attorney, Health Professional, Court
Investigator
• Guidelines for Health Professional’s Report
• Notice of Hearing
FORMS:
https://superiorcourt.maricopa.gov/media/3744/pbga1fz.p
df
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PLEADINGS
Preparing for and Attending the Court Hearing
1. Declaration of Completion of Training
2. Order to Guardian(s) of an Adult and
Acknowledgement
3. Order of Appointment of Permanent
Guardian of an Adult
4. Letters of Appointment and Acceptance
of Appointment
Forms:
https://superiorcourt.maricopa.gov/llrc/prob_
pbga8/
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MENTAL HEALTH POWERS
1.
§ 14-5312.01
2.
Order of Appointment of Guardian: Outpatient
vs. Inpatient. Rules 24 & 36.
3.
Guidelines for Physician Report:
a. Separate section to be completed if petitioner is
requesting authority to consent to inpatient mental
health treatment.
b. Examiner must be psychiatrist or psychologist.
4.
Continuation/Renewal. § 14-5312.01(P)
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SERVICE OF PROCESS
1.
Personal service required.
a.
Guardianship: § 14-5309
b.
Conservatorship: § 14-5405
2.
Waiver of personal service on Ward is ineffective in certain
circumstances. § 14-5309(B).
3.
Consent/waiver needs to be notarized.
Rule 14, Rules of Probate Procedure.
4.
Publication. § 14-1401(A)(3).
5.
Location of parent unknown.
6.
Filing proof of notice. § 14-1401(C).
7.
Court may modify for good cause. § 14-1401(B).
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SPECIAL RULE FOR DISABLED
MINORS REACHING AGE 18
1. A.R.S. § 14-5301.03
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HEARING PROCEDURES
Rule 3(A), Rules of Probate Procedure:
Arizona Rules of Civil Procedure. Unless
otherwise provided in these rules or
inconsistent with these rules, the Arizona
Rules of Civil Procedure apply to probate
proceedings and to civil actions filed within or
consolidated with a probate case.
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HEARING PROCEDURES (CONT.)
Rule 3(D), Rules of Probate Procedure:
Arizona Rules of Evidence.
1. The Arizona Rules of Evidence apply in contested probate
proceedings. If all parties agree not to have those rules apply and the
judicial officer concurs and enters an order to that effect, all relevant
evidence is admissible, provided, however, that the judicial officer may
exclude evidence if its probative value is substantially outweighed by the
dander of unfair prejudice or confusion of the issues, or by
considerations of undue delay, waste of time, or needless presentation
of cumulative evidence, or if the evidence lacks reliability.
2. In uncontested probate proceedings, the Arizona Rules of Evidence
shall not apply. All relevant evidence is admissible, but the judicial
officer may exclude evidence if its probative value is substantially
outweighed by the dander of unfair prejudice or confusion of the issues,
or by considerations of undue delay, waste of time, needless
presentation of cumulative evidence, or if the evidence lacks reliability.
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WITHDRAWAL OF COUNSEL
1.
Explanation Letter to Client
2.
Ex Parte Application (with client consent)
3.
Proposed Form of Order
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